Alabama Advisory Opinions November 30, 2000: AGO 2001-041 (November 30, 2000)

AGO 2001-041.

Dear Judge Horsley:

This opinion of the Attorney General is issued in response to your request.

QUESTIONS

As Probate Judge of Winston County, what are my responsibilities to determine who won the local school board race in Winston County in the general election on November 7, 2000? If Mr. Neal is not qualified to hold this position, is the person who received the next highest votes elected, or does a vacancy exist that must be filled by the current school board or the school board in office on January 1, 2001?

Your request states that Mr. Idas L. (Spooky) Neal Jr. was the Republican nominee on the November 7, 2000, ballot for a position on the Winston County School Board. Mr. Neal had no Democratic or third-party opposition. On Monday, November 6, 2000, Mr. Neal entered a guilty plea agreement to a felony crime in the United States District Court, Northern District of Alabama. Mr. Neal's name was already printed on the ballot, and it was too late to have his name removed. Mr. Neal received 4656 votes in the November 7, 2000, election. A write-in candidate, Mr. Don Allison, who is the incumbent, received 1124 write-in votes. Mr. Allison's term of office ends in January 2001 pursuant to a local act applicable to Winston County. See 1965 Ala. Acts No. 112, 172.

Mr. Neal was disqualified from holding office under the authority of the State of Alabama on Monday, November 6, 2000, when Mr. Neal's guilty plea was accepted by the United States District Court. See ALA. CODE § 36-2-1 (1991). As stated in your request, it was too late to have Mr. Neal's name removed from the ballot for the election the next day, on November 7, 2000. The Alabama Supreme Court has held that "votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards other candidates." State ex rel. Cleveland v. Stacy , 263 Ala. 185, 187, 82 So. 2d 264, 265 (1955). If the disqualified candidate receives the greatest number of votes, the election is declared null and void because of the disqualification of the winning candidate. Id . If the election is null and void, a vacancy in the office exists, and this fact should be certified to the appropriate appointing authority. Banks v. Zippert , 470 So. 2d 1147 (Ala. 1985).

Under the circumstances presented in your request, Mr. Neal was disqualified from holding an office on the Winston County Board of Education at the time of the election on November 7, 2000. Because Mr. Neal received the greatest number of votes in that election, the election is null and void. The probate judge should certify this fact to the Winston County Board of Education. A majority of the remaining members of the county board of education has the authority to fill vacancies in the office of members of the Winston County Board of Education within 30 days of the vacancy. ALA. CODE § 16-8-6 (1995). The vacancy will not occur until the incumbent's term of office ends in January 2001. The remaining board members, at that time, have the authority to fill the vacancy.

The disqualification of the candidate who received the greatest number of votes in the November 7, 2000, general election for the office of member of the Winston County Board of Education requires that the election be declared null and void. A vacancy in this office will occur in January 2001 at the expiration of the incumbent's term of office. The remaining members of the Winston County Board of Education, in January 2001, have the authority to fill the vacancy.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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